Asking the Right Questions About the Death Penalty

The incoming head of the Death Penalty Information Center on the time he was a potential juror in a capital case.

By Robert Dunham

There will be a changing of the guard next week at the Death Penalty Information Center, the non-profit organization dedicated to providing news, analysis, and data about capital punishment in the United States. Richard Dieter, the center’s executive director, is stepping down after 23 years of supervising the production of reports, processing news coverage, and generally being a fount of knowledge for reporters and lawyers asking about the modern death penalty. And on Monday, Robert Dunham — a lawyer, law professor, and expert on capital punishment, a litigator with extensive experience in death penalty cases — will take over as the new executive director.

The job Dunham is about to inherit is frenetic under any circumstances, but it is also a particularly dynamic time in the history of the death penalty in America. There is a roiling fight over lethal injection secrecy laws and over the drugs to be used to kill the condemned. Utah this week pushed ahead with plans to use the firing squad again, and Alabama lawmakers are pondering the renewed use of an electric chair. There is a fight over judicial overrides of jury verdicts in capital cases — a topic the U.S. Supreme Court agreed just this week it needs to address. And in Pennsylvania, where Dunham has worked for decades, Gov. Tom Wolf and Seth Williams, the state’s most visible prosecutor, are fighting in court over a moratorium halting executions.

We reached out to Dunham this week to ask him about the death penalty and DPIC’s role in chronicling it. Below, he discusses the time he was a potential juror in a capital case, his thoughts on Pennsylvania’s flawed capital regime, and addresses the eternal question: Are you for or against the death penalty? — Andrew Cohen

I have been called as a prospective juror in a capital case in Philadelphia and was asked about my views on the death penalty. At that time, I was an associate in the litigation department of a major Philadelphia law firm and was handling a capital case pro bono. I answered under oath that I could impose the death penalty in an appropriate case.

In many states, the questioning of death penalty juries is not as extensive as it is in Colorado or in federal death-penalty cases. And the lawyers in the case in which I was called to serve did not ask any follow-up questions about my views on the death penalty. I was asked additional questions about my answers to whether I knew anyone in law enforcement (I did) and whether I had been a victim of crime (I had). I told the lawyers and the judge that I knew several police officers – including a Philadelphia homicide detective – from my service as a member of the board of directors of a local non-profit that provided support services to victims of crime. I also told them that I had been robbed at knifepoint by two assailants one night on my way home from law school.

I was asked the race of my assailants (they were black) and whether it would affect my ability to judge the guilt or innocence of a young African-American defendant (it would not). I was not asked about any cases I was handling at the firm but was asked a bit about the partners with whom I had worked. But it turns out that none of these answers mattered anyway because of my answers to one particular question: I grew up in West Mt. Airy, one of the most racially integrated neighborhoods in Philadelphia. The prosecution exercised a discretionary challenge – called a peremptory challenge – to strike me from the jury.

Eight or nine years later, after Professor David Baldus’ landmark study on Philadelphia’s death penalty, I learned why. I had been a victim of racial profiling by the Philadelphia District Attorney’s office.

The first Baldus Philadelphia study, published in the late 1990s, showed that among all Philadelphia cases in which the prosecution sought the death penalty, the odds that a defendant would be sentenced to death increased by a factor of 3.1 if the defendant was black. Among all cases that resulted in a conviction for capital murder and advanced to a penalty trial, the odds of being sentenced to death were 9.3 times greater if the defendant was black. And among all cases in which the jury had found both aggravating and mitigating factors, and so was required to choose whether the defendant should live or be sentenced to die, the odds that the jury would exercise its discretion to take a defendant’s life were 29.9 times greater if the defendant was black.

Using the same data analysis that is used in determining medical risks, the researchers learned that black defendants in Philadelphia faced an “excess death rate” of 30 percent, meaning that nearly a third of the more than 100 African Americans sentenced to death in Philadelphia would not have been sentenced to death but for their race. Professor Baldus wanted to know why. And while he was working on this first study, an internal Philadelphia district attorney training tape came to light teaching the city prosecutors how to strike jurors on the basis of race and to invent race-neutral reasons for those strikes. So Professor Baldus began collecting data on the race of jurors accepted or struck by the prosecution and the defense in capital cases.

That data, which spanned three prosecutorial administrations between 1981 and 1997 and encompassed more than 14,000 choices to empanel or exclude prospective jurors, showed that Philadelphia prosecutors peremptorily struck black jurors from capital trials at twice the rate of non-black jurors. It also showed that Philadelphia prosecutors peremptorily struck prospective white jurors like me who grew up in integrated neighborhoods at twice the rate of jurors who lived in highly segregated white neighborhoods. In other words, Philadelphia prosecutors used racial profiling to discriminate both against black jurors and against white jurors who were more likely to associate with blacks.

Now, I think it is important to distinguish between the morality of the death penalty in the abstract – as to which DPIC takes no position – and the separate question of the death penalty as public policy. In terms of public policy, the question, “Do you favor or oppose the death penalty?” in the abstract is only the start of the inquiry. Do you favor or oppose the death penalty as compared to what? To a short term of years, to life without parole, to life without parole with prison wages earmarked for victim restitution? Do you favor or oppose the death penalty if it is discriminatorily pursued and discriminatorily applied? If, even apart from racial and ethnic and economic discrimination, it is arbitrarily and unequally pursued and arbitrarily and unequally applied?

Do you favor or oppose the death penalty if the evidence shows it is useless and ineffective as a deterrent, if it is hugely expensive and economically inefficient as compared with other possible penalties and other crime-reducing strategies, and if its use for symbolic and political purposes diverts resources from programs and policies that have an actual chance of making a difference? Do you favor or oppose the death penalty if we know its use will result in the execution of people who are innocent and increase the risk of wrongful conviction? What about if we know that fair process is going to be denied because states fail to provide meaningful representation to defendants and tolerate extreme misconduct by prosecutors, or because elected judges are overriding jury recommendations for life or deciding appeals in cases that were prosecuted in their counties while they were serving as district attorney?

Do you favor or oppose the death penalty if it has proven itself to be just another out-of-control government program that doesn't work? If it permits a small number of prosecutors in a small number of counties to impose extraordinary costs on taxpayers from the other 98 percent of the counties in the country that do not – or only rarely – use it? Do you favor or oppose the death penalty if it undermines our stature in the world, if the spectacle of secret and botched executions becomes a national and international embarrassment? If because of our use of the death penalty, we lose the moral standing to speak out against serious human rights abuses around the world?

So whether I or other prospective jurors could impose the death penalty in a particular case if the evidence supported it is ultimately irrelevant to the critical public policy issues DPIC and I are interested in. Even if you believe that there are individual cases for which the death penalty might be warranted, and even if you believe that we can get it right in some individual cases, it doesn’t justify a policy. A policy needs to be correctly, consistently, evenhandedly, and non-discriminatorily applied. A government program needs to be cost-effective and better than other remedies in fighting crime. These are the critical public policy questions that need to be discussed and need to be addressed.